After 1 March 2009 small business employers (those who employ
fewer than 20 employees) can include written 'trial
periods' in the employment agreements of new employees. The new
trial periods provide small businesses with some reprieve from
unfair dismissal claims but still allow for employees to lodge
Can be for any period up to 90 days from the beginning of a new
Must be agreed before the employment starts and they must be a
written term of the employment agreement.
Cannot be used if the employee has previously been employed by
the same employer.
Allow employers to dismiss on notice given during the trial
period (even if the termination occurs after the end of the trial
Prevent employees bringing a personal grievance for unjustified
Can be included in terms offered to a union member employee
covered by a Collective Employment Agreement (CEA) as long as the
trial period is not inconsistent with the terms and conditions in
Can be included in the terms offered to an employee entitled to
a CEA's coverage for the first 30 days of their employment as
long as the trial period is not inconsistent with the terms and
conditions in the CEA.
If there is a compliant trial period an employer does
not have to:
Comply with the good faith duty to supply an employee with
information relevant to their continuity of employment before
deciding to dismiss the employee.
Provide an opportunity for the employee to comment on the
possibility of a trial period dismissal before the employer makes
Provide reasons or justification for a trial period
Importantly employees subject to a trial period still have the
right to bring personal grievances in respect to:
Any disadvantage that occurred while they were employed.
Discrimination, and sexual or racial harassment.
Duress related to union involvement or non involvement.
A situation where an employer fails to implement the Employee
Protection Provisions required by part 6A of Employment Relations
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This publication is intended as a first point of reference
and should not be relied on as a substitute for professional
advice. Specialist legal advice should always be sought in relation
to any particular circumstances and no liability will be accepted
for any losses incurred by those relying solely on this
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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